Exhibit 2.10
SECOND AMENDMENT
TO
MERGER AND ISSUANCE AGREEMENT
THIS SECOND AMENDMENT TO MERGER AND ISSUANCE AGREEMENT (this "Amendment")
is made and entered into as of June 26, 1997, by and between Security Capital
Pacific Trust, a Maryland real estate investment trust ("PTR"), and Security
Capital Group Incorporated, a Maryland corporation ("Security Capital").
WHEREAS, PTR and Security Capital are parties to that certain Merger and
Issuance Agreement, dated as of March 24, 1997, as amended on April 21, 1997 (as
so amended, the "Merger Agreement"), pursuant to which, among other matters, PTR
and Security Capital agreed to merge subsidiaries of Security Capital performing
REIT management and property management services with respect to PTR with and
into a subsidiary of PTR in exchange for shares of common stock of PTR; and
WHEREAS, the parties desire to amend the terms of the Merger Agreement to
clarify certain ambiguities and to clarify the rights and obligations of the
parties with respect to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. Section 2.3 of the Merger Agreement is hereby amended and
restated in its entirety as follows:
SECTION 2.3 THE RIGHTS OFFERING. PTR shall distribute as a dividend
to each holder of record of PTR Common Shares, as of the close of business
on the PTR Shareholders' Approval Record Date, rights to purchase PTR
Common Shares entitling such holder to subscribe for and purchase PTR
Common Shares during the period commencing on the date the PTR Prospectus
is mailed to such holders and expiring on the close of business on the date
of the Merger Closing (the "Rights Offering Expiration Date). The issuance
of such rights and the issuance of PTR Common Shares upon exercise of such
rights shall be registered under the PTR Registration Statement and PTR
shall use its best efforts to cause the rights to be tradeable on the
Exchange on which the PTR Common Shares are listed. Each holder of PTR
Common Shares shall receive one (1) right for every one (1) PTR Common
Share held of record by such holder as of the PTR Shareholders' Approval
Record Date. The exercise price per PTR Common Share for such rights shall
be equal to the amount determined by the PTR Board (or a duly authorized
committee thereof); provided, that in the event that the Fair Market Value
of an PTR Common Share is more than $27.1145, then the exercise price per
PTR Common Share shall be $27.1145; and provided,
further, that the exercise price per PTR Common Share shall in no event
(other than as described in the preceding proviso) be less than 94% of the
Fair Market Value of a PTR Common Share. PTR shall make available for
issuance in the rights offering, up to a maximum number of PTR Common
Shares equal to the difference between (X) the amount determined by
dividing (A) the number of PTR Common Shares issuable pursuant to Section
2.1 by (B) the percentage of all outstanding PTR Common Shares owned by SCG
on the PTR Shareholders' Approval Record Date (the amount determined
pursuant to this clause (X) being the "Rights Offering Amount") and (Y) the
number of PTR Common Shares issuable to SCG pursuant to Section 2.1. Each
holder shall be entitled to acquire one (1) PTR Common Share by paying the
Fair Market Value and surrendering that number of rights (rounded down to
the nearest whole right) equal to the amount determined by dividing the
aggregate number of PTR Common Shares outstanding on the PTR Shareholders'
Approval Record Date by the Rights Offering Amount. SCG agrees that it
shall not exercise or sell or otherwise transfer any rights issued to it
pursuant to this Section 2.3 and SCG shall not purchase or otherwise
acquire any rights. PTR shall not accept subscriptions pursuant to such
rights unless and until all of the conditions set forth in this Agreement
have been satisfied or waived and the mergers described in Section 2.1 have
been consummated. Any PTR Common Shares that are not subscribed for by
shareholders may be offered to other shareholders pursuant to an
oversubscription privilege and, if not fully subscribed for by
shareholders, may be sold to third parties. The REIT Manager shall, at its
own expense, engage an affiliate of SCG to assist PTR in selling PTR Common
Shares to third parties.
Section 2. Exhibit I to the Merger Agreement is hereby amended and
restated in its entirety in the form attached hereto as Exhibit A.
Section 3. Capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed thereto in the Merger Agreement.
Section 4. Except as otherwise specifically modified hereby, the Merger
Agreement shall remain in full force and effect.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
SECURITY CAPITAL PACIFIC TRUST
By: /s/ R. XXXX XXXXXXX
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R. Xxxx Xxxxxxx
President and Chief Executive Officer
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
